EEOC DIRECTIVES TRANSMITTAL Number 150.001 Date 01/23/98 SUBJECT. DISCLOSURE OF INFORMATION UNDER THE FREEDOM OF INFORMATION ACT. PURPOSE. This transmittal revises EEOC Order 150.001, which prescribes procedures for disclosing Commission documents pursuant to the Freedom of Information Act (FOIA), as amended, 5 U.S.C. § 552, and Subpart A of 29 C.F.R. Part 1610. The revisions reflect the Commission's current organizational structure, and allow for delegation of certain responsibilities under FOIA to promote greater efficiency. EFFECTIVE DATE. January 23, 1998. DISTRIBUTION. W. OBSOLETE DATA AND FILING INSTRUCTIONS. EEOC Order 150.001, Disclosure of Information Under the Freedom of Information Act, dated February 26, 1992, as amended, is obsolete and should be removed from the directives reference files and destroyed. /signed/ _________________________ ELLEN J. VARGYAS Legal Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION EEOC ORDER 150.001 WASHINGTON, D.C. 20507 January 23, 1998 GENERAL MANAGEMENT External Relations 1. SUBJECT. DISCLOSURE OF INFORMATION UNDER THE FREEDOM OF INFORMATION ACT. 2. PURPOSE. This transmittal revises EEOC Order 150.001, which prescribes procedures for disclosing Commission documents pursuant to the Freedom of Information Act (FOIA), as amended, 5 U.S.C. § 552, and Subpart A of 29 C.F.R. Part 1610. The revisions reflect the Commission's current organizational structure, and allow for delegation of certain responsibilities under FOIA to promote greater efficiency. 3. EFFECTIVE DATE. January 23, 1998 4. ORIGINATOR. Advice & External Litigation Division, Office of Legal Counsel. 5. BACKGROUND. Upon receipt of a request for reasonably described records made in accordance with published agency rules, the FOIA requires each federal agency to determine whether to disclose the records to the requester within 20 working days. The FOIA does not require an agency to provide copies of records that are published and offered for sale. Additionally, section 552(b) exempts specified classes of records from the public access requirements. Official records of the Equal Employment Opportunity Commission (EEOC) disclosed pursuant to the FOIA shall be furnished only in accordance with 29 C.F.R. Part 1610 and this Order. Arbitrary or capricious withholding of requested information by Commission officers or employees may constitute the basis for discipline. See 5 U.S.C. § 552(a)(4)(F). Accordingly, no request made under the FOIA should be denied by any officer or employee except in a decision issued by the following authorized officials: the Legal Counsel, the Deputy Legal Counsel, the Assistant Legal Counsel, Advice and External Litigation Division, a Regional Attorney, or their designees as referenced herein. DISTRIBUTION: W To the extent not prohibited by other laws, the EEOC will disclose records whenever an authorized official or designee determines that disclosure is in the public interest notwithstanding authorization under the FOIA to withhold such information. NOTE: Officers and employees of the Commission may continue to furnish to the public, informally and without compliance with the procedures contained in this Order, information and records that have been furnished customarily in the regular performance of their duties (e.g., items listed on the EEOC Publications List). This includes copies of the Commission's federal sector decisions. 6. RESPONSIBILITIES. a. The Legal Counsel or designee will: (1) establish controls and agency procedures for handling FOIA requests and appeals; (2) have published in the Federal Register all information approved by the Commission that is required to be published by the FOIA; (3) provide the Director, Library and Information Services Division, with: (a) a copy of commercially unpublished Commission decisions deemed to have precedential value; (b) an index to decisions provided pursuant to (a) above, and a quarterly update to the index; (c) a quarterly index to commercially published Commission decisions absent the availability of a commercial version; and (d) a quarterly index to the EEOC Compliance Manual, unless such index is commercially published; and (4) provide training or training materials to field offices as appropriate. b. The Deputy Legal Counsel or designee will: (1) within 20 working days of their receipt, render decisions on appeals from requesters whose requests for information were denied and include notice to the appellants of the right to file a civil action in the U.S. District Court for the district in which the appellant resides or has his principal place of business, in the district where the records are located, or in the District of Columbia; (2) determine what materials will be made available for public inspection and copying; (3) determine when, where and at what fee requested records will be disclosed and forward collected fees to the Financial Management Division; and (4) maintain files on all FOIA requests as required by 29 C.F.R. § 1610.13. c. The Assistant Legal Counsel, Advice & External Litigation Division, or designee will: (1) grant or deny FOIA requests, except on those matters for which authority is delegated to the Regional Attorneys, and inform individuals whose requests are denied of their appeal rights under 29 C.F.R. § 1610.11; (2) provide advice to Regional Attorneys on the FOIA and 29 C.F.R. Part 1610; and (3) prepare an annual FOIA report, to be submitted to the Attorney General. d. Office Directors, both Headquarters and Field, will: (1) promptly provide requested information or assistance to the Legal Counsel, Office of Legal Counsel staff, or Regional Attorney; and (2) familiarize all employees with the requirements of FOIA and this Order. e. Headquarters Office Directors additionally will: (1) ensure that any FOIA requests received by their offices will be hand delivered to the Assistant Legal Counsel, Advice and External Litigation Division, before the end of that day unless other arrangements are made (requests and appeals under the FOIA are to be controlled by the Office of Legal Counsel, not by other offices); and (2) provide to the Director, Library and Information Services Division, and to each District, Field, Area and Local Office one copy of each notice, proposed rule or final regulation published by the Commission in the Federal Register. f. District Directors additionally will: (1) maintain a public reading area in which the materials listed in Appendix A are available for public inspection and copying; (2) ensure prompt delivery to the Regional Attorney of all FOIA requests received; (3) advise all staff within the district to comply with instructions issued by the Regional Attorney pertaining to FOIA requests; and (4) assure that any employee delegated responsibility for FOIA will receive adequate training to perform those responsibilities. g. Field, Area and Local Office Directors will additionally: (1) maintain the materials listed in Appendix A for public inspection and copying; and (2) forward immediately all FOIA requests to the Regional Attorney. h. Regional Attorneys or designated Supervisory Trial Attorneys or Trial Attorneys will: (1) review all FOIA requests; (2) inform oral requesters of 29 C.F.R. § 1610.5, which requires that FOIA requests be in writing, except in instances in which the information sought is clearly disclosable and readily available; (3) instruct Field, Area and Local Office Directors to fill requests for any information that is listed in Appendix A; (4) determine whether to grant FOIA requests involving information contained in EEOC case files; (5) inform individuals whose requests are denied of appeal rights under 29 C.F.R. § 1610.11; (6) contact the Advice and External Litigation Division, Office of Legal Counsel, when advice is needed in responding to a FOIA request; (7) forward to the Assistant Legal Counsel, Advice and External Litigation Division, all requests for which the Regional Attorney has not been delegated responsibility; (8) collect and forward assessed fees, see Appendix B, to the Financial Management Division, Office of Financial & Resource Management; (9) refuse to accept FOIA appeals and advise submitters of the appeal procedures under 29 C.F.R. § 1610.11; (10) maintain indexes of FOIA requests as directed by the Legal Counsel or designee; and (11) provide an annual report to the Assistant Legal Counsel, Advice and External Litigation Division, after the close of each fiscal year. i. The Executive Secretariat will: (1) maintain a record of all final votes cast by the Commissioners for possible disclosure under the FOIA; and (2) provide the Director, Library and Information Services Division, with copies of comments received on proposed rules. j. The Director, Budget Division, Office of Financial and Resource Management, will provide the Director, Library and Information Services Division, with a copy of the annual EEOC budget submission to Congress. k. The Director, Library and Information Services Division, Office of Research, Information and Planning, will: (1) maintain for public access and copying the materials listed in Appendix A, and any additional materials designated as necessary by the Legal Counsel or designee; (2) assess and collect fees for such materials as prescribed in Appendix B, and forward the payments to the Financial Management Division, Office of Financial and Resource Management; (3) ensure that field offices are supplied with an equal employment decisions looseleaf service and bound volumes; and (4) distribute the materials listed in Appendix A (except for 1(b), (d) & (f)), in addition to materials the accessibility of which are deemed necessary under the FOIA by the Legal Counsel or designee. l. The Director, Financial Management Division, Office of Financial and Resource Management, will maintain records of all payments for services rendered pursuant to the FOIA, and provide an annual report to the Assistant Legal Counsel, Advice and External Litigation Division, after the close of each fiscal year. m. All employees are responsible for knowing and observing the requirements of the FOIA, Subpart A of 29 C.F.R. Part 1610, and this Order. 7. PROCEDURES FOR DISCLOSING INFORMATION. a. District Offices. The Regional Attorney will determine whether to grant or deny the disclosure of requested information within 20 working days of receipt of the request (all references to Regional Attorney herein include designated Supervisory Trial Attorneys or Trial Attorneys). If granted, the Regional Attorney will designate the anticipated date of disclosure, whether via mailing of copies or inspection. Inspection opportunities, when granted, should be restricted to a reasonable, specified, period of time. The Regional Attorney will ensure that all disclosure determinations are carried out. He or she shall grant disclosure requests for: materials listed in Appendix A that are located in a Field Office; non-confidential statistical data related to office case processing; agreements between the Commission and state or local fair employment practice agencies under its jurisdiction, after redacting attachments or sections that name or otherwise specifically identify employers; and, public information about current employees (see 5 C.F.R. § 293.311(a)), e.g., names, positions, grades, salaries and duty station. The Regional Attorney will grant or deny FOIA requests for information contained in case files in accordance with Commission policy. Under no circumstances should the existence of a particular Title VII or Americans with Disabilities Act charge be disclosed to a member of the public. In addition, the identity of an individual who files a confidential complaint pursuant to the Equal Pay Act or the Age Discrimination in Employment Act should not be disclosed. Upon receipt of a FOIA request that raises novel issues or has an impact beyond the receiving office, the Regional Attorney or designee should contact the Advice and External Litigation Division attorney previously designated by the Assistant Legal Counsel as FOIA advisor for that office. The Regional Attorney will adhere to 29 C.F.R. Part 1610, implement all FOIA appeal determinations and be guided by those determinations in responding to future requests. Whenever documents are being withheld, the Regional Attorney must state in the response that appeals are governed by 29 C.F.R. § 1610.11 and that they must be addressed to the Legal Counsel, EEOC, Washington, D.C. 20507. The Regional Attorney should not accept FOIA appeals. If the Regional Attorney forwards a request to Headquarters or to another District Office for response, on advice of the Advice and External Litigation Division FOIA advisor or because the requested information is located there, the requester shall be informed of this action and that the request will not be deemed received until actually received by the appropriate office. The request should not be denied. To ensure expeditious handling of FOIA requests, the Regional Attorney should instruct all clerical and professional employees about the importance of the FOIA. Employees shall also be informed of the possible penalties for not complying with the FOIA and this Order. Under 5 U.S.C. § 552(a)(4)(F), prior to any action against an individual agency employee for wrongful withholding of documents, a court must have:(1) ordered the production of improperly withheld documents, (2) assessed attorney's fees and other litigation costs against the Government, and (3) issued a written finding that agency personnel may have acted arbitrarily and capriciously with respect to the withholding. Employees should also be aware that the unauthorized disclosure of documents protected by the confidentiality provisions contained in sections 706(b) and 709(e) of Title VII, 42 U.S.C. §§ 2000e-5(b) and 2000e-8(e), may constitute the basis for discipline. b. Field, Area and Local Offices. Upon receipt of a FOIA request, the Director shall promptly notify the Regional Attorney. The Regional Attorney's instructions, including requests for charge file information, shall be fully complied with and expeditiously implemented. If the request is forwarded to another office, the Director shall inform the requester of the action and that the request will not be deemed received until actually received by the appropriate office. To ensure the requisite promptness of response, the Director shall instruct all employees as to the importance of the FOIA, and of potential penalties for not complying with the FOIA and this Order. c. Headquarters Library. Materials maintained at the Library, see Appendix A, shall be made available to the public for inspection and copying upon request. Such requests require a response within 20 working days of receipt. Requests for information not maintained by the Library shall be hand-delivered, on the day of receipt, to the Advice and External Litigation Division, Office of Legal Counsel. d. Headquarters Offices. The Office of Legal Counsel is responsible for processing all FOIA requests received at Headquarters. If a Headquarters office receives a request for information that cites the FOIA, it should be hand-delivered, on the day of receipt, to the Advice and External Litigation Division, Office of Legal Counsel, unless other arrangements are made. The time period for responding to such requests will start to run upon receipt in the Office of Legal Counsel. The Office of Legal Counsel will process requests in accordance with 29 C.F.R. Part 1610 and this Order, and grant or deny requests in accordance with Part 1610 and the FOIA updates. 8. TIME LOG, FEE COLLECTION AND WAIVER. All Commission officers or employees required to respond to a FOIA request will record the time allocated to locating or compiling information. An annual summary of such time expenditures shall be submitted to the Assistant Legal Counsel, Advice and External Litigation Division, after the close of each fiscal year. The field Office Director, Deputy Legal Counsel, Regional Attorney, Director, Library and Information Services Division, or Assistant Legal Counsel, Advice & External Litigation Division, or designees as indicated herein, shall assess fees according to the published rates. See 29 C.F.R. § 1610.15. Indirect expenses such as standard mailing costs, office overhead, etc., shall not be considered when assessing the fee. Fees for searches that produce only non- disclosable documents or no documents at all shall be assessed in accordance with 29 C.F.R. §§ 1610.15 and 1610.16(b). Assessable fees may be waived pursuant to section 1610.14 if waiver is in the public interest because disclosure will enhance the public understanding of the Agency and its functions, and is not primarily in the commercial interest of the requester. Typically, costs less than $5.00 and those to indigents should be waived. Collection of fees should be in the form of checks or money orders, made payable to the Treasurer of the United States, and forwarded to the Financial Management Division, Office of Financial and Resource Management. 9. LIST OF APPENDICES. APPENDIX TITLE A Data To Be Maintained By Designated Commission Offices For Public Access B FOIA Fees 10. OBSOLETE DATA. EEOC Order 150.001, Disclosure of Information Under the Freedom of Information Act, dated February 26, 1992, is obsolete and shall be removed from directives reference files and destroyed. /signed/ ELLEN J. VARGYAS Legal Counsel APPENDIX A DATA TO BE MAINTAINED BY DESIGNATED COMMISSION OFFICES FOR PUBLIC ACCESS The Headquarters reading room is located in the Commission Library, on the 6th floor of the Headquarters building, and is open to the public by appointment. Reading areas are also located in the respective District Offices. Field, Area and Local Offices shall maintain the information listed below, but are not required to provide a designated reading area if space availability is limited. 1. District, Field, Area and Local Offices shall maintain the following materials: a. Blank EEOC forms relating to the Commission's procedures as they affect the public; b. EEOC's annual reports to Congress, to be distributed by the Office of Communications and Legislative Affairs; c. Compliance Manual and Index; d. Federal Register entries published by the Commission; e. EEOC Orders, including Directives, Supplements, and Notices; and f. An equal employment decisions looseleaf service and bound volumes. 2. Headquarters Library. In addition to the materials listed above, the Headquarters Library shall maintain the following: a. Opinions interpreting the Equal Pay Act or the Age Discrimination in Employment Act, and all related documents provided to the Commission by the Department of Labor pursuant to the Memorandum of Understanding, June 6, 1979, 44 Fed. Reg. 39,304 (1979); b. Commercially unpublished Commission Precedent Decisions and index; c. Commission budgets submitted to Congress; d. Commercially published indexes to the Compliance Manual and the Commission Precedent Decisions; and e. Other materials that the Legal Counsel or designee determines should be publicly available for inspection and copying in the public reading room under the FOIA. APPENDIX B FOIA FEES ***Please refer to 29 C.F.R. sections 1610.15 and 1610.16.***
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